Teaching skills in Advocacy with History.
Association of Law Teachers Annual
Conference, Nottingham 2013.
Andrew Watson@lawcol.co.uk
Growth of courses at university
introducing students to advocacy
skills.
In my idea their appreciation
and knowledge of courtroom
advocacy could be further enhanced
by study of what has shaped it over
time.
The view from the
Tardis:
Advocacy has changed enormously over period
studied, the early 17th Century to the present.
Done so piecemeal and at an uneven pace.
Result of complex interplay of many influences, most
notably individual advocates, alterations in the law
and broad social factors.
Principal drivers of change:
• Styles and approaches of successful
advocates;
• Judicial tastes;
• Changes court in procedure made by judges;
• Reforms of laws of evidence;
• Alterations in civil and criminal procedure and
substantive law;
Principal drivers:
• Extent of press reporting cases in court;
• Public and opinion on what are acceptable
limits of advocates’ tactics and oratory;
• Advocates’ professional rules of conduct and
extent to which they are followed;
• Levels of respect and civility between
advocates and judges;
Principal drivers:
• Standing of the judiciary and its power to
control proceedings in court;
• Extent to which juries are used in trials;
• Social origins and educational standards of
jurors;
• Greater education and knowledge of jurors,
making them less susceptible to melodramatic
emotional appeals;
Principal drivers:
• Awareness and use by advocates of
contemporary language and popular cultural
references;
• School education received by lawyers;
• Formal teaching of courtroom advocacy;
• General styles of public speaking and
discourse in society;
Principal drivers:
• New technology;
• Relationship, though not simplistic, between
quality of advocacy and amount paid for it;
• Widening the pool of advocates.
Opportunity to draw international
comparisons with common law
countries and civil law countries eg
the United States, and Japan.
Discussion, debates and moots on issues
of modern relevance including:
• Cab rank rule;
• Preparing witnesses;
• Televising courts.
Similarities and contrasts with courtroom fiction could be
drawn.
Visits to courts and Inns of Court.
Pressure of time may require some selectivity,
but enough must be conveyed to show that
advocacy is fluid and subject to a complex
interplay of factors and that they will witness
future change, and may even contribute to it.
Whilst imagined as an addition to courses involving
skills in advocacy, sufficient material exists for discrete
courses on the development of advocacy at both
undergraduate and graduate level.
May, in a modest way, contribute to growing body of external legal
history and be of interest , beyond the law faculty, to students of
history and other disciplines.
Background to advocacy could be explained at
the beginning of professional courses eg. the Bar
Professional Training Course.
When tried it received
a positive response. Many wanted
to know more.
David Cairns the preface to his book, first
published in 1998, described the history of
advocacy as neglected: “no more sophisticated
or significant expression of the art of the lawyer
has been studied less.” This inattention, in his view,
exemplified the continuing gulf between the worlds of
legal scholarship and legal practice.
Geoffrey Robertson QC, in his preface
to Sir William Garrow, by John
Hostettler and Richard Braby, 2009,
criticises legal history’s disdain of
advocacy “in favour of teaching the
tedious history of contract and
landlaw, partly because of the
inability of historians to comprehend
the dynamics of forensic practice and
how this impacts on the rules of the trial
process.”
It is submitted that greater knowledge of what has shaped
modern advocacy is in itself good and may enhance its quality.
Much to be said for the view of Counsellor Pleydel in Sir Walter
Scott’s Guy Mannering, “A lawyer without history or literature is
a mechanic – a mere working mason; if he possesses some
knowledge of these he may venture to call himself an architect.”
Conclusion:
Courses informing students of the rich history of advocacy may
result in more scholarship on the subject especially by those who
become advocates and who will acquire a strong grasp of
courtroom dynamics. More awareness of what has formed it
may also enhance the quality of modern advocacy. The worlds of
legal scholarship and legal practice, seen widely apart by David
Cairns and Geoffrey Robertson, may, therefore, be drawn more
closely together.
Poster depicting the development of advocacy: